Labor & Employment Digest: May 2014

In a practice area with as much individuality as labor and employment law, the voices of law firms inject the kind of color, insight and expertise that provide inside counsel and other legal professionals with a cornerstone of true understanding. Here, InsideCounsel brings together the voices of firms active in the space to get their take on the issues shaping the policies of workplace compliance and regulation.

Legality of wellness program incentives

“Are punitive incentives a part of your employer health plan, or are they being promoted as part of a general workplace program? The answer will help determine if the incentives are legal. The U.S. Equal Employment Opportunity Commission has determined that employers can't legally penalize workers who don't participate in activities associated with general wellness programs. The legal issues involved will depend upon how these wellness programs are developed and in what context they’re created.”

“Region 13 of the National Labor Relations Board (NLRB) recently issued a ruling that Northwestern University football players qualify as employees of the university and therefore can legally unionize. The decision is ground-breaking because it is the first time a federal government agency has taken the position that scholarship athletes are legally ‘employees’ of the institution they attend and that the scholarships they receive are essentially ‘wages.’ While the NLRB has no decisional authority over other state or federal work-related statutes, the central finding raises a host of questions related to federal workplace safety rules, income taxes, federal wage and hour laws, and benefit plans. Northwestern University has filed a formal appeal with the NLRB.”

“SB 292, signed into law on August 12, 2013, amends the California Fair Housing and Employment Act (FEHA) to clarify that ‘[s]exually harassing conduct need not be motivated by sexual desire.’ This amendment went into effect Jan. 1, 2014, and overrules Kelley v. The Conco Companies, in which a court of appeal held that a same-sex harasser's graphic, vulgar, and sexually explicit language was not actionable as sexual harassment because it was not an expression of actual sexual desire.”

—Brian H. Chun, associate (San Francisco), Lafayette & Kumagai LLP

Know the rules before you play or pay

“Under the Affordable Care Act, an employer deciding whether to ‘play’ or ‘pay’ needs to be diligent in tracking the number of hours worked by its workforce, including calculation of paid time off, medical and disability leave, and military leave, in order to determine whether its workforce is eligible for health benefits. Employee status is irrelevant as health benefits must be extended to temporary and per-diem workers if they meet the hours-worked requirement.”

“Employers should be mindful of a significant new trend affecting hiring—so-called ‘ban the box’ laws have been enacted by multiple states and municipalities. These laws preclude most employers (some exceptions apply) from requiring applicants to disclose criminal record information on an application. Complicating matters is the EEOC's 2012 guidance asserting that employers’ rigid use of criminal record information to deny employment has a discriminatory impact on certain minority groups. Employers should review their applications and hiring practices to avoid inadvertent violations and significant liability.”